Right of an accused to default bail: Does the Supreme Court's extension of limitation apply?

On May 6, the Supreme Court extended all limitation periods prescribed under the Arbitration and Conciliation Act, 1996 and under Section 138 of the Negotiable Instruments Act, 1881, with effect from March 15, 2020, until further orders.

Its earlier order dated March 23 essentially extended the period of limitation in all proceedings, irrespective of the limitation prescribed under the general law or special laws. The Court clarified that the said order was passed to ensure that lawyers/litigants do not have to physically approach the Courts in view of the COVID-19 lockdown and resultant difficulties in filing such pleas.

On May 8, while deciding an application for default bail, the Madras High Court observed that the order of the Apex Court would not defeat the right of an accused under Section 167(2) of the Criminal Procedure Code (CrPC), as denial of compulsive bail to such person would definitely amount to violation of his fundamental right under Article 21 of the Constitution of India.

A contrary view was taken by a co-ordinate bench of the High Court on May 11, observing,

“13. ……..The right to live guaranteed under Article 21 is subject restriction. Presently, though the state is not passing through emergency duly proclaimed, whole nation has accepted the restrictions for well-being of mankind. At this juncture, myopic reading of Section 167 of Cr.P.C conveniently ignoring the spirit behind the order by the Apex Court invoking its power under Article 142 of the constitution will amount to judicial indiscipline.

17. The learned judge has mis-interpreted the Apex Court Order dated 23/03/2020. The clarification order dated 06/05/2020 no way dilute or restrict the scope and extend of the earlier order. Since the order relied by the learned counsel for the petitioner is contrary to the spirit of the Honourable Supreme Court order issued in exercise to the power of Article 142 it is non-est and has no binding force.”

In view of the conflicting opinions, the Chief Justice of Madras High Court has constituted a Division Bench to answer the issue. But in the meantime, three important questions arise:

(i) Which order would be binding on Courts pending judgment of the Division Bench on this issue?

(ii) Whether the subsequent view taken by a co-ordinate single bench of the Court would be permissible, valid and legally binding on sub-ordinate Courts.

(iii) Whether Right of Accused to default/statutory bail under Section 167(2) of the Code would come within the ambit of the said order?

The cumulative ratios of Dr. Vijay Laxmi Sadho v. Jagdishi, State of Punjab v. Devans Modern Brewaries Ltd., and Sheetal v. State of Maharashtra manifest that when the earlier view rendered by the co-ordinate bench is in existence, the subsequent view by the Bench of the same strength taking a contrary view to the view taken by earlier Bench, without referring it to a larger bench, would not be legal and binding.

Thus, to answer (i) and (ii), pending order of the Division Bench, the prior view taken by the Court would be in force and the subsequent view would be per incuriam and unbinding for want of judicial discipline.

To answer (iii) it would be apposite to elaborate on Section 167(2) of the Code, which contemplates detention of accused to custody, empowering a Magistrate to authorise such detention of accused in police custody for a period not exceeding 15 days, and thereafter to judicial custody.

Such Magistrate shall not authorise detention in custody for a total period exceeding:

(a) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(b) sixty days, where the investigation relates to any other offence,

On the expiry of the said period, the accused person shall be released on bail if he is prepared to and does furnish bail.

The said provision has been elucidated in a catena of judgments of the Apex Court and High Courts, which hold that a person accused of any offence has a statutory right to bail if investigation in the said offence is not completed within the prescribed time period being sixty or ninety days, as the case may be.

In Sanjay Dutt v. State through CBI, a five-judge-bench of the Apex Court, while elaborating on the scope of Section 167(2) of the Code, laid down the law observing,

“(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith.”

In Uday Mohanlal Acharya v. State of Maharashtra, a full bench of the Apex Court, while concurring with Sanjay Dutt’s judgment, observed,

“Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody upto a maximum period as indicated in the proviso to Sub-section (2) of Section 167, any further detention beyond the period without filing of challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution.”

In Malin Issabelle v. Union of India, the Bombay High Court while observing Section 10 of the General Clauses Act to be inapplicable while computing the period prescribed under Section- 67(2) held -

“….The Supreme Court, while computing the days in a month which are required for computation of the period specified by 167(2) of Cr.P.C, has included Sundays and Holidays as well. Hence, this decision is not on the point at all.

22.In my view, once learned Single Judges of this Court have taken a view that section 10 was inapplicable, learned Special Judge was in error in relying upon the said provision (section 10 of General Clauses Act) and applying it in the facts of the present case. His attention was not invited to the judgements of Supreme Court applying the provisions of Section 167(2) of Cr.P.C. to N.D.P.S. cases, principles underlying the same, nature of right conferred upon the accused thereunder. Further, learned Special Judge’s attention was also not invited to the Binding Judgements of this Court.”

In Vinayak Palve v. State of Maharashtra, the Bombay High Court was pleased to hold that the date of first remand i.e. the first day of production of an accused after his arrest pursuant to the crime, would be taken into account for calculating the period as prescribed under Section167(2) of the Code. The Court went on to observe,

“What could be gathered from the above referred judgment is, even if the provisions of MCOC Act are invoked at a later date than that of the date of first remand i.e. when the Accused was first produced in the Court for the first date will have to be taken into account for calculating the period as prescribed under Section 167(2) of the Code of Criminal Procedure.”

The cumulative effect of abovementioned judgments indicate that failure to complete investigation within the period prescribed under Section 167(2) of the Code renders an indefeasible right of bail, accruing in favour of the accused upon expiry of such period. Denial of statutory bail would infringe his fundamental right under Article 21 of the Constitution of India.

To conclude, Section 167(2) of the Code does not impose any limitation on the Investigating Agency to file its final report/charge-sheet within a specific period. It only contemplates the consequences in case of charge-sheet not being filed within the time prescribed under the said provision. As a result, no question of limitation would arise in cases of default bail.

The author is an Advocate of the Bombay High Court.